-by Scoop (September 29, 2017)
n the United States we seem to be a litigious nation as individuals, companies and government agencies file law suits so frequently and for just about any cause that sometimes the rush to the docket is as if the ‘last days’ are at hand and the complainant is confident that the outcome of their case will determine their ‘hereafter’, so to speak. And speaking of frivolous law suits, google Pearson Vs Chung, a $54 MILLION civil suit filed years ago by, wait for it, a U.S. Administrative Law Judge in the District of Columbia against his dry cleaner over a pair of the Judge’s missing trousers.
So Here’s The Scoop: I know, that suit sounds insane but the case drew worldwide attention and reportedly the original complaint by the Judge demanded the court make him ‘whole’ to the tune of $67 Million because the poor lug, over a missing pair of pants, was inconvenienced, may have suffered some mental anguish and I even read that he wanted Attorney fees’ reimbursed for defending himself. Inconceivable!
When it comes to criminal cases there often seems to be no difference in the ‘legal’ system and the maxim comes to mind that a willing, eager, aggressive and overzealous Prosecutor and/or a Grand Jury, if so desired, ‘could indict a ham sandwich”.
For example, in the USA there are hundreds of criminal cases in which wrongly convicted citizens spent and/or are spending up to 1, 2 or 3 decades (aka: 10, 20 or 30 years +) in prison or on death row who, as it turns out, are 100% innocent. For more details on that google (e.g.) The Innocents Project and/or or wrongly convicted, etc.
From what I’ve also read it appears that whether the ‘issue’ is a criminal or civil matter something like 85% of all cases pretty much end with an out-of-court ‘settlement agreement’ (SA) which then becomes the disposition of the matter when the SA is accepted and approved by the presiding Judge.
This brings me to a legal topic that should concern some timeshare sales folks because if I’ve learned anything it’s that even for those with ‘deep pockets’ the JUDICIAL system can be a scary rabbit hole most of us would be advised to shun like “The Black Death Plague” of 1348 that killed scores of millions of otherwise healthy folks.
The ‘legal issue’ is what I believe those trained and/or qualified in such matters might call the willful failure to disclose, if known (or what a reasonable person should have known), a material and/or an adverse fact when selling slices of paradise to JQP (John Q Public).
For example, if it is common knowledge that the likelihood of an existing ‘vacation-owner’ reselling and/or renting (R&R) out their ‘time’ is as probable as timeshare developers dumping ‘points’ and reverting back to selling fixed weeks/units; and if the rep fails to inform the prospective buyer (aka: sales guests) of that little R&R reality during the presentation – is not that kind of like concealing and/or failing to disclose a material (or adverse) fact?
Well, I just don’t know; but I’ve heard that if you gather up 10 lawyers that specialize in the same area of law (such as contracts, consumer, corporate or constitutional law, etc.) and then ask them all to give their legal opinion on a specific topic you may very well get back 10 different and unique perspectives (aka: expert legal opinions).
Hence I wonder, would it be a bad idea for sale reps to have some sort of an ‘Errors & Omissions’ (aka; PLI – Professional Liability Insurance) policy to protect them, their incomes, their homes, their families, savings and investments, etc. from any possible liability levied against them from (e.g.) an allegation of their willful failure to disclose one or more material (or adverse) facts during the ‘pitch’?
For us lay-folks this legal ‘stuff’ is all so confusing. Damn, for all I know a (e.g.) State Attorney General (AG) could file criminal charges (highly unlikely) against a developer for withholding material (or adverse) facts during the sales presentation and this AG could even name one or more of the rep(s) in the complaint – perhaps as an accomplice – for aiding and abetting and/or just plain old knowingly, freely and with malice aforethought demonstrate their willful intent to defraud consumers, etc.
Not likely but what I do believe is that if a sales person(s) is named in any such suit, be it civil or criminal, then with a high degree of confidence I’d bet the farm that said sales rep(s) would have to pay for their own defense. And that could cost them $50,000 to $75,000.00 (or more) – with, by the way, no guarantee they’d prevail.
Lastly, a “material fact”, according to the website Lectlaw.com means, in part, “A fact that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction”.
The key word for me is “transaction”! Say, I have an idea – why don’t the two major timeshare exchange companies and all the developers via (e.g.) the American Resort Development Association (ARDA), pony up & purchase some sort of a ‘group insurance policy’ that would protect their TS sales reps. You know, on the off chance some (e.g.) lone Attorney is looking for a challenge.
Good Luck Out There
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